Just as the smacking debate dogged the previous government, the fuss around folate has the potential to knock the gloss off this government if it doesn't act quickly.

The debate over whether to introduce folic acid into the nation's bread is a classic example of how government's lose their shine. It's one of those blindside issues that come from nowhere to muddy the political mood.

When the new National-ACT cabinet met late last year, I can't imagine anyone much remembered the deal Labour had made with the Australians to try to prevent neural defects in new babies. But then Labour never saw the foreshore and seabed ruling coming either. The folate debate won't become as big an issue – for one it's easier for National to put a lid on this – but in a similar way it will leave a lasting impression in the minds of many voters.

If National had been more vigilent and more experienced, they would have seen this coming. Instead, they left it late and now are in a politically untenable position. If you haven't got your head around this issue, let me give you a quick rundown.

New Zealand and Australia created a joint food standards authority back in 1991 (when National was in power) to harmonise food standards across both countries. During the previous Labour government, minister Annette King was convinced by lobbyists that introducing folic acid to a mass market product – bread, in this case – would improve the health of pregnant women and reduce the number of brain damaged babies born in both countries. Folic acid was, at that stage, seen as a wonder vitamin, good for all. Heck, the US has folic acid through much of its bread and its spina bifida rates have dropped significantly since the folate was introduced.

A number of critics say it would be cheaper and better targeted to simply hand out free folic acid pills to every pregnant woman. The problem with that argument is that for it to work most effectively, women need to be taking folic acid from about a month before they get pregnant, and given that at least half of the pregnancies in New Zealand are unplanned, well, you need to get it into women in some everyday product they'll be consuming whether they're pregnant or not.

And let's be very clear about this: Folic acid is very important for pregnant women, and in normal doses it's unquestionably very good for you.

Given the amount of minerals and vitamins being tossed into food these days and the fact folate is already added to a lot of cereals, King probably didn't expect much fuss.

She should have. The 'mass medication' label is both warranted and certain to wind up many Kiwis. What's more nanny state than forcing us to take our medicine whether we want to or not? This has got Mary Poppins written all over it. And not even the US puts it in every loaf of bread (except for organic loaves).

The argument against mandatory folate is strong, and getting stronger. For a start, it's using a sledgehammer to crack a walnut. While everyone gets the folate, it will save only an estimated three to 14 babies a year from neural defects. Of course if yours was one of those three babies (and it was Food Standards Australia New Zealand's own report in 2005 that estimated the benefit at three children per year), you'd be more than happy with the medication. But compulsion is a power all governments must be wary of using, and is that sufficient gain to justify such a big stick? If so, why not add half a disprin to all loaves to help older folk with heart problems? Where do we stop?

Another significant point is that New Zealand's spina bifida rate has been tracking down much like America's over the same period. I don't have any science to confirm this, but logic suggests that the increasing use of folic acid by pregnant women anyway, our improving diet (folate is naturally found in spinach, bananas, and avocados, amongst other foods), and its addition to cereals is making a difference without going the mandatory route.

But perhaps the most compelling argument is the handful of recent lab studies in the past year or so that suggest a link between "high levels" of folic acid and cancer risk. As a result, Ireland has put its planned introduction of folic acid to all bread on hold. While the expert panel employed there stressed that the studies were inconclusive, it added that new, better research was expected by the end of the year, so it would delay until it knew more.

The most serious risk, while still small, is for young boys and females in general. The New Zealand Food Safety Authority (which is different from the ANZFSA) has warned the government that 13.8 percent of males aged five to eight and 8.2 percent of females are going to exceed the upper level intake for folic acid. It would be terrible to learn in a decade or two that those heavy bread eaters had been put at a higher risk of cancer.

The Irish Food Safety Authority announced its decision to delay in March. Plenty of time, you would have thought, from National to have seen this coming. It was surely going to be asked, 'if Ireland's concerned enough to delay, shouldn't we be as well?'

The problem is our joint authority with Australia. A treaty was signed. National says they don't want the folate, but the law binds them. And it's true, we can hardly go around breaking treaties. And it's rather curious that the Greens – such champions of international law – seem to have so little regard for this document.

Having said that, I'd be very surprised if the Australians didn't see the virtue in delaying for a few months. I would have thought a few high level phone calls and some rational explanations would be enough to reach agreement without our neighbours sending the frigates over to put us in our place.

Instead, Food Safety minister Kate Wilkinson is changing positions by the day. Last week she was acknowledging the safety concerns but claiming that her hands had been tied by Labour's legacy. Now she's pointing to new research which says folic acid is safe at high levels after all.

She's panicking now, and it's not a good look. She was in an untenable situation last week, but at least it was rational, up to a point. She was right to say that the science on the folate-cancer link is "light". Jumping to the other side and saying that one new study suddenly makes everything alright simply makes her look as flaky as a croissant. If several studies showing a link last week were "light", one study challenging that is utter puff (pastry).

The political risk here is high for the government if they don't act quickly. At National's campaign launch last year, Bill English mocked Labour for responding to every issue with regulation saying,

"It will be a challenge to roll back the nanny state... but we will meet that challenge".

The hypocrisy cries have already begun. And the Bakers' Association and the powerful supermarket lobby aren't going to let up.

The only good news for National in all this is that Labour at least is as compromised by this issues as it is. Labour MPs can't lead the attack on the government when it was their policy. But voters don't need them to get their dander up.

If the government doesn't get out in front of this, it could eat away at it just as the smacking debate ate away at the previous government. The 'don't come into my home and tell me how to run my life' argument is identical (except that in this case it has more merit). And with the referendum coming up and National unlikely to want to reverse is position and amend the child discipline laws, its anti-nanny state credentials are in serious jeopadry.

John Key's in an double bind because he's a big fan of getting closer to Australia. But for his own political health he needs to get on the phone to Kevin Rudd pronto to get his government out of its untenable position.

Comments (7)

the Minister responsible for overseeing this new standard, National's Kate Wilkinson, doesn't want this to happen. Yet there's apparently nothing she can do to stop the new requirement coming into force.

Kate Wilkinson said the same thing on Q&A, but she kept explaining it by reference to the Food Act, where there was a lot of sparring about sections 11L, 11E, etc. This is by no means my area of expertise, but I think it was misconceived for reasons that follow.

Under section 11L, the Minister may at any time amend or revoke a food standard, subject to sections 11E to 11K. Effectively, what most of those sections do is require the same process to be followed for an amendment, as was originally followed in determining that a food standard should be issued. Wilkinson repeatedly referred to what was in context the wrong section (11E) – the one she meant was probably 11H(4). But for a couple of reasons that doesn’t actually answer the question.

It’s true that it's not open to the Minister to suspend at this stage under 11H(4) as I read it, although it’s not well drafted. But I can't find anything in 11E to 11K that addresses revocation, and there must be an argument to be made that Parliament meant "suspend" to mean something different from "revoke", or it wouldn't have used two different words. And even if that's not right, and the Minister's hands are tied, Parliament could intervene if it wanted.This is because of section 11I of the Food Act, which deems every food standard to be a regulation for the purposes of the Regulations (Disallowance) Act 1989. Section 5 of the Regulations (Disallowance) Act 1989 provides:

5 Disallowance of regulations

(1) The House of Representatives may, by resolution, disallow any regulations or provisions of regulations.

(2) Where the House of Representatives passes a resolution disallowing any regulations or any provisions of any regulations, the regulations or provisions so disallowed shall cease to have effect on the later of—

(a) The passing of the resolution; or

(b) Any date specified in the resolution as the date on which the regulations or provisions cease to have effect.

Andrew (public lawyer) – am I right? And "the House" is just a majority, right, not unanimous?

So if there’s any legal issue stopping the House from doing that, it’s not the Food Act but the agreement with Australia – which you’ve identified Tim:

The problem is our joint authority with Australia. A treaty was signed. National says they don't want the folate, but the law binds them. And it’s true, we can hardly go around breaking treaties.

Annex C of the agreement clearly envisages different standards for Australia and New Zealand. There is a procedure to be followed – which is presumably the procedure Wilkinson says she intends to trigger in September. (There’s also a procedure for emergency differences, but that’s only available to meet exceptional public health and safety or environmental conditions.)

The agreement says:

Where a food standard is adopted by a majority of the Council and the New Zealand member of the Council considers that the food standard would be inappropriate for New Zealandon the grounds of exceptional health, safety, third country trade, environmental, or cultural factors, the representative of New Zealand on the Council may inform the Chair of the Council that New Zealand needs to vary from the agreed food standard …

In the event of the New Zealand member informing the Council that New Zealand intends to vary from a food standard adopted by the majority of the Council, then the food standard adopted by the majority of the Council will be regarded as applicable only in Australia, and New Zealand will not be required to take legislative steps to adopt or incorporate it as otherwise required under paragraph (1) of Article 5 of this Agreement.

So neither departure from Australia nor temporary "panic stations" would be unprecedented – it’s a question of how strictly Annex C is to be applied in allowing us to do it. Strictly interpreted, it’s arguable whether any of the grounds would apply – which is the obstacle Wilkinson ought to be explaining.

But if the government’s lost its mandate (or the previous government never had one), surely Australia (since we’re such good mates) isn’t going to be pernickety about it – why would they care? It would be different if the whole joint food standards enterprise thing turned on total cohesion, but clearly it doesn’t, or Annex C wouldn’t exist.

Apologies for thinking out loud and at such unforgiveable length … but if I might be so bold, I hope that helps the PM in assessing the relative size of the international and domestic political problems – and that he will get on the phone!

ps - and actually, now that I think about it, the "health and safety" ground is in fact right there in Annex C. Only question is whether there's enough in the whole mix of emerging evidence and other circumstances to make it "exceptional".

"But perhaps the most compelling argument is the handful of recent lab studies in the past year or so that suggest a link between "high levels" of folic acid and cancer risk."

Except that such a link now doesn't actually appear to exist. Which means the only real reason for revisiting the decision is a political change of opinion on whether it is justifiable to fortify (almost) all bread/"mass medicate" in order to gain the benefit of fewer damaged children. Problem being that if the NZ govt pulls out 'cause a new Government has different views on this, then Australia quite rightly could get miffed. Because NZ already has "form" on this sort of matter - remember the past-Labour government's agreement to set up a trans Tasman regulator of herbal supplements/"alternative medicine" called the Australia New Zealand Therapeutic Products Authority? Only to have the Therapeutic Products and Medicines Bill 2007 get voted down in the House? Thereby leaving the Aussies hanging? Not too sure how they'd react if we do it again!

Claire,

Yes - a majority vote in the House is all that is required to "disallow" a regulation. But despite John Key's claim to have Crown Law working on a way out of the issue, I think it is more a diplomatic risk than a legal one.

Boy Claire, that's a thorough run through! It seems the easiest way out of the deal, if that's what the Nats want, is in Annex C. All Wilkinson has to do is refer to the "dafety" part of that exit clause. But the bigger point is that contrary to Wilkinson's claim that she can't do anything to opt out of the deal, the government in fact has several exits open to them. And if you can figure that out in the course of a day, what have her officials been doing with their time?

The answer, perhaps, is political. First, I've been told that King drove this issue and convinced the Australians to come on board. It would look foolish for this country to have pushed Australia that hard, only to withdraw ourselves at the last minute. The Aussies would be left with a law we drove through, and may be a bit piqued by that.

Second, I understand the Aussies weren't impressed at the way Key's lot scuppered the Therapeutic Prodcuts Authority, which Andrew refers to. So Key's got previous when it comes to pissing off the Aussies on trans-Tasman regulation. Given that by and large he wants more of it – most especially a common border – he could be in the position where he's taking with one hand and begging with the other. Which could look a little preposterous from the other side of the ditch.

Would Key risk his common border campaign and other closer relations for the sake of this issue? It's an interesting choice for him.

And Andrew, take your point on that story, but I don't think one study (even a study or studies) is sufficient evidence to put concerns to one side just yet. The Bakers Association put out a release today claiming that Prof Skeaff has previously said that,

“mandatory folic acid fortification would represent an uncontrolled clinical trial with all New Zealanders as participants”.

I don't want to appear alarmist on this. But delay does seem reasonable. I confess I don't know anything about the research which the Irish are waiting for, but if as they say it's due out before the end of the year, I would have thought both Australia and NZ would be happy to taiho.

"I don't want to appear alarmist on this. But delay does seem reasonable. I confess I don't know anything about the research which the Irish are waiting for, but if as they say it's due out before the end of the year, I would have thought both Australia and NZ would be happy to taiho."

It is, of course, entirely possible the research in question is that referred to by Prof Skeaff. We also need to distinguish between the study he refers to (which pools the results of multiple individual studies covering 35,000 people taking very high levels of folic acid and finds no increased risk at all of cancer) and the study that raised the concern in the first place (which covered only 640 people, and only suggested a possible link that should be further explored). So it's not just a question of "one study says X, the other says Y". Instead, it is that one small study suggested X might be possible, the other overview of all the relevant studies on the topic indicates that X has not occured.

As for Prof Skeaff's previous statements on the issue ... he may well have changed his mind after seeing further evidence (like this study)! (Just like Prof Jim Mann, Otago University's professor of human nutrition and medicine, who "was initially unenthusiastic about mandatory addition of folic acid to the food supply, but [is] now a supporter.") Which is exactly what I'd expect a good scientist to do - and in the end the potential benefit/possible cost balance is a scientific question. However, the ideological/ethical question of "how far should the state intervene in deciding what we will eat, in order to produce good benefits" is a different (although related) question that gets answered in the political realm ... which is what we're seeing now.

All Wilkinson has to do is refer to the "safety" part of that exit clause. But the bigger point is that contrary to Wilkinson's claim that she can't do anything to opt out of the deal, the government in fact has several exits open to them. And if you can figure that out in the course of a day, what have her officials been doing with their time?

Tim - quite, and also have to wonder what the Minister's been doing with HER time - or alternatively, how motivated is she, really? According to her biography on the National Party website:

Kate studied law at the University of Canterbury and graduated with an LLB. She began working as a solicitor with Harman & Co in 1979, and became a partner five years later. She was involved in general practice law, corporate and commercial law, and property and trusts law.